Watson v Transitional Coastal Panel [2018] NSWLEC 1680

Watson v Transitional Coastal Panel [2018] NSWLEC 1680

Because the proposed development was permissible with consent, landowner consent had been provided, the relevant savings and transitional provisions meant the former coastal planning provisions continued to apply, and the expert evidence and agreed conditions satisfied the requirements concerning public access, public safety, coastal hazards, restoration, maintenance and funding, the parties' agreed decision was one the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' decision by upholding the appeal and granting conditional...

Jurisdiction
Australia
Judgment Date
21 December 2018
Procedural Posture
Class 1 Development Application Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Agreement Between the Parties Under S 34(10)
Outcome
Appeal upheld; development application approved subject to conditions; each party to bear its own costs except in respect of any existing cost order.
Legal Topics
['development Application for Repairs to Existing Seawall' 'coastal Protection Works' 'public Access to Coastal Foreshore' 'jurisdictional Prerequisites for Development Consent' 'section 34 Conciliation Agreement']
['planning and Environment' 'coastal Management' 'development Consent'] ['development Application for Repairs to Existing Seawall' 'coastal Protection Works' 'public Access to Coastal Foreshore' 'jurisdictional Prerequisites for Development Consent' 'section 34 Conciliation Agreement']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Agreement Between the Parties Under S 34(10)

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether development consent could be granted for repairs to the existing seawall having regard to the Environmental Planning and Assessment Act 1979, Coastal Protection Act 1979, Byron Local Environmental Plan 1988 and State Environmental Planning Policy No 71—Coastal Protection.' 'Whether the proposed works would unreasonably limit public access to or use of the beach, pose a threat to public safety, or affect coastal hazards.' 'Whether satisfactory arrangements had been made by conditions for restoration, maintenance and funding of the coastal protection works.']

Ratio Decidendi

Because the proposed development was permissible with consent, landowner consent had been provided, the relevant savings and transitional provisions meant the former coastal planning provisions continued to apply, and the expert evidence and agreed conditions satisfied the requirements concerning public access, public safety, coastal hazards, restoration, maintenance and funding, the parties' agreed decision was one the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' decision by upholding the appeal and granting conditional...

Court Disposition

Appeal upheld; development application approved subject to conditions; each party to bear its own costs except in respect of any existing cost order.

Orders

  • ['The appeal is upheld.' 'Development Application number CP 17-007 to undertake repairs to the existing seawall located within the Council Road Reserve immediately seaward of the private property at Lots 21-23 and 18-20 Section 2 of DP 1623, being 44 and 48 Childe Street, Byron Bay is approved subject to the...